Washington Energy Report > Troutman Sanders LLP

EPA Targets Regional Haze

The U.S. Environmental Protection Agency (“EPA”) took three recent actions that bring renewed emphasis to the Agency’s regional haze program.

In what is likely a harbinger for other eastern states, on June 9, 2011, EPA proposed a limited approval and limited disapproval under the Clean Air Act (“CAA”) of Tennessee’s State Implementation Plan (“SIP”) addressing anthropogenic impairment of visibility (haze) in national parks and wilderness areas.  The limited disapproval of Tennessee’s SIP was based on the fact that the Tennessee SIP, like those of many eastern states, relied on compliance with the Clean Air Interstate Rule (“CAIR”) to satisfy the CAA’s best available retrofit technology (“BART”) requirement for reducing visibility-impairing pollutants like sulfur dioxide, nitrogen oxides, and particulate matter..  BART requirements apply to plants built between 1962 and 1977.  CAIR was struck down by a federal court in 2008 and will be replaced in 2012 by a new Clean Air Transport Rule (“CATR”), which caps emissions of sulfur dioxide and nitrogen oxides that travel across state lines.  There was some expectation that EPA might rule that compliance with CATR would satisfy BART requirements, just as compliance with CAIR had been deemed to satisfy BART.  

In the action last week on the Tennessee regional haze SIP, EPA ruled that compliance with CAIR would only satisfy BART until the CAIR program went out of existence at the end of this year.  Thereafter, according to EPA, compliance with CATR would not be deemed to satisfy BART.  The fact that Tennessee had relied on CAIR for compliance with BART after this year led EPA to propose to issue a limited disapproval of the Tennessee SIP.  According to EPA, that limited disapproval means that EPA would be required to impose a federal implementation plan with BART requirements within two years after EPA finalizes its proposed limited disapproval. 

A large number of eastern states, like Tennessee, relied on compliance with CAIR being deemed to be compliance with BART, and hence they also may be facing federal implementation plans with BART requirements.  EPA left open the possibility that further analysis might show that, given emission reductions from CATR and the newly proposed Air Toxics Rule, separate BART requirements might not be necessary in the CATR states.  EPA is receiving comments on its proposed limited approval and disapproval of Tennessee’s SIP until July 11, 2011.  

In an action that likewise may signal new haze requirements for EGUs, EPA this week entered into a settlement agreement with WildEarth Guardians and other environmental groups to take action on either approving haze SIPs or imposing Federal Implementation Plans (“FIPs”) on several western states.  The settlement agreement stays a lawsuit filed against EPA under Section 304(a)(2) of the CAA alleging EPA failed to perform a mandatory duty to act on SIPs addressing haze in national parks and wilderness areas. Under the settlement terms, EPA must issue final rules to accept or reject North Dakota’s haze SIP by January 26, 2012, Wyoming’s haze SIP by October 15, 2012, Montana’s haze SIP by June 29, 2012, and Colorado’s haze SIP by Sept. 10, 2012.  Litigation will be stayed until July 29, 2011 to allow publication of the settlement terms in the Federal Register for public comment prior to final court approval of the settlement.

The WildEarth Guardians deal comes on the heels of a lawsuit filed last month against EPA by Oklahoma’s Attorney General contesting EPA’s rejection of Oklahoma’s haze SIP.  Oklahoma says the rejection will cause electricity rates to rise by 13 to 20 percent. North Dakota lawmakers additionally have sent a letter to EPA opposing the Agency’s expected proposal to reject North Dakota’s SIP and impose a FIP.  

Eighteen coal-fired power plants may be required to install emissions controls, switch to natural gas, or shut down under the ensuing new haze rules in the four western states targeted by the WildEarth Guardians suit.  Written comments on the proposed WildEarth Guardians consent decree will be received by EPA until July 15, 2011.